After Reading This Article You Can Solve This UPSC Mains Model Question:
Discuss the sources and major branches of International Law. Examine the key challenges in its enforcement in the contemporary world order. Also analyse its significance for India. 15 Marks (GS-2 International Relations)
What is International Law?
International Law (Public International Law) is a system of rules, norms, and standards generally accepted in relations between nations.
- Nature: Unlike domestic law, it is consensual. There is no “World Government”; instead, it operates on the principle of Sovereign Equality (UN Charter Art 2.1).
Sources of International Law
As per Article 38(1) of the ICJ Statute, the sources are:
- Primary Sources:
- Treaties/Conventions: Expressly recognized written agreements.
Example: UNCLOS (Law of the Sea) or the Paris Agreement (Climate).
- International Custom: Evidence of a general practice accepted as law (Opinio Juris).
Example: Diplomatic immunity was a custom long before it was written into a treaty.
- General Principles: Principles recognized by “civilized nations” (e.g., Good Faith).
Example: Res Judicata (a matter already judged cannot be relitigated) or the Right to be Heard.
- Subsidiary Sources: Judicial decisions (ICJ/Domestic courts) and teachings of highly qualified publicists.
Example: The Kulbhushan Jadhav Case (2019), which clarified the interpretation of consular access rights.
Need for International Law
1. Maintaining International Peace and Security
Without a legal framework, the global system reverts to “might is right.”
- Conflict Limitation: It provides the rules for when force can be used (Jus ad Bellum) and how it must be conducted (Jus in Bello).
- Dispute Resolution: It offers platforms like the International Court of Justice (ICJ) and Permanent Court of Arbitration (PCA) to settle border and maritime disputes (e.g., the Chagos Archipelago or South China Sea) through logic rather than lasers.
2. Management of “Global Commons”
- High Seas: Governed by UNCLOS, ensuring freedom of navigation and fair distribution of deep-sea mineral resources.
- Outer Space: The Outer Space Treaty prevents the weaponization of space and ensures celestial bodies aren’t “claimed” by private corporations or states.
- Atmosphere: Frameworks like the Paris Agreement regulate carbon emissions, which recognize that “pollution knows no borders.”
3. Facilitating Global Economic Cooperation
- Standardization: The WTO provides a rules-based trading system that prevents arbitrary tariffs and trade wars.
- Investment Protection: Bilateral Investment Treaties (BITs) encourage foreign direct investment (FDI) by providing legal recourse to companies if a state illegally seizes their assets.
- Functional Needs: Simple things like international mail (UPU), flight paths (ICAO), and cross-border banking (SWIFT/Basel III) rely entirely on international legal protocols.
4. Protection of Fundamental Human Values
- Human Rights: The UDHR and subsequent covenants set a “floor” for how a state must treat its own citizens.
- Criminal Accountability: It ensures that perpetrators of genocide or war crimes cannot hide behind “sovereignty” (e.g., the role of the International Criminal Court).
- Refugee Protection: It defines the obligations of states toward those fleeing persecution, preventing humanitarian catastrophes from becoming regional instabilities.
Scope of International Law
1. Expansion of Subjects (Who is governed?)
The scope has moved beyond the “Westphalian” model of only sovereign states.
- Sovereign States: Remains the primary subject (e.g., India’s maritime boundaries).
- International Organizations: Entities like the UN, WTO, and WHO now have legal personality and can sue or be sued.
- Individuals: Under International Criminal Law (ICC) and Human Rights law, individuals have both rights and liabilities (e.g., prosecution for war crimes).
- Non-State Actors: Multinational Corporations (MNCs) and NGOs are increasingly falling under international regulatory scopes regarding environmental and labor standards.
2. Expansion of Material Scope (What is governed?)
The “Material Scope” has shifted from mere diplomacy to complex technical and social regulations.
A. The Law of Co-existence (Traditional)
- Diplomatic Relations: Immunity of diplomats and embassies.
- Territorial Integrity: Rules regarding land borders and airspace.
- War and Neutrality: The “Laws of War” (Geneva Conventions) which dictate how conflicts are fought.
B. The Law of Cooperation (Modern)
- Economic & Trade Law: Regulating global markets via the WTO and IMF.
- Environmental Law: The most rapidly expanding scope, including the Paris Agreement and the new Global Plastics Treaty (2025).
- Human Rights: International oversight of domestic treatment of citizens.
C. The Frontiers (Emerging)
- Outer Space Law: Regulating satellite traffic and lunar resources (e.g., Artemis Accords).
- Cyberspace & AI: The 2026 scope now includes “Algorithmic Sovereignty” and the prevention of transboundary cyber-attacks.
- Bio-Ethics: International regulation of CRISPR and human cloning.
3. Geographical Scope (Where does it apply?)
- Land & Air: Sovereign territory and international flight paths (ICAO).
- The Seas: From internal waters to the High Seas (UNCLOS).
- The Polar Regions: The Antarctic Treaty System which keeps the continent demilitarized.
- Extra-Terrestrial: The moon and other celestial bodies.
Regulation of Interstate Relations
- Sovereign Equality & Non-Interference: Based on Article 2 of the UN Charter, all states have equal voting rights and must not interfere in the domestic affairs of others, maintaining the “Westphalian” global order.
- Use of Force (Jus ad Bellum): Prohibited under Article 2(4) of the UN Charter, with only two exceptions: Self-defense (Art 51) and UN Security Council Authorization.
- Diplomatic Inviolability (1961/1963): Regulated by the Vienna Conventions, ensuring embassies are off-limits to local police, diplomats have immunity from prosecution, and citizens have the right to consular access (e.g., Kulbhushan Jadhav case).
- Law of Treaties: Governed by the Vienna Convention on the Law of Treaties (1969). Key principle: Pacta Sunt Servanda (Agreements must be kept).
- Jurisdictional Regulation of “Frontiers”: International law defines boundaries in the High Seas (UNCLOS), Airspace (Chicago Convention), and Cyberspace (2026 UN Cybercrime Treaty) to prevent overlaps and conflict in global commons.
- Peaceful Dispute Settlement: Under Article 33 of the UN Charter, states are obligated to settle quarrels through a hierarchy of tools: from soft diplomacy (negotiation/mediation) to binding legal rulings (ICJ or Arbitration).
Major Branches of International Law
| Branch | Focus Area | Key Instrument/Institution |
| Law of the Sea | Maritime zones, EEZ, High Seas | UNCLOS (1982) |
| Humanitarian Law (IHL) | Rules of war; protection of civilians | Geneva Conventions (1949) |
| Environmental Law | Climate change, biodiversity | Paris Agreement, ICJ Climate Advisory |
| Space Law | Space as “Province of All Mankind”; non-appropriation of celestial bodies; liability for space debris. | Outer Space Treaty (1967), Artemis Accords |
| Criminal Law | Genocide, War Crimes, Crimes against Humanity | International Criminal Court (ICC) |
| Trade & Economic | Non-discrimination in trade (MFN Status); Investor-State Dispute Settlement (ISDS); Intellectual Property (TRIPS). | WTO |
Issues in International Law
- The Enforcement Gap (“Toothless Tiger”): Unlike domestic law, there is no global police. Enforcement is hindered by Selective Compliance (powerful states ignoring rulings), UNSC Paralysis (P5 Veto power preventing action), and the requirement of State Consent for ICJ jurisdiction.
- Sovereignty vs. Human Rights: The “Westphalian Trap” allows states to use Non-Interference as a shield for domestic abuses. While the Responsibility to Protect (R2P) doctrine exists, its application remains inconsistent and politically motivated.
- Legal Fragmentation: The proliferation of specialized regimes (Cyber, Space, Trade) creates Conflicting Jurisdictions. A single issue may be judged differently by the WTO (economic) vs. an Environmental Tribunal (sustainability), causing legal uncertainty.
- Democratic Deficit & Eurocentrism: Many rules were authored by Western powers during the colonial era. The Global South often views frameworks like TRIPS or sovereign debt rules as biased, leading to urgent calls for the democratization of the UN and Bretton Woods institutions.
- Technological “Grey Zones”: Law lags behind innovation. Key dilemmas include whether Cyber-attacks constitute “armed attacks” under Article 51, legal liability for Lethal Autonomous Weapons (AI), and establishing “causality” for Climate Liability and reparations.
Way Forward
- UNSC Reform: Expanding the Security Council to include permanent representation from the Global South (India, Brazil, African nations) to improve legitimacy.
- Compulsory Jurisdiction: Moving towards a system where states accept the ICJ’s jurisdiction automatically for certain categories of disputes (e.g., environmental or trade issues).
- AI Governance: Finalizing the Global Digital Compact to establish ethical boundaries for AI in warfare and state surveillance.
- Shared Responsibility: Recognizing India’s stance on “shared responsibility” in refugee crises and environmental protection—shifting the burden from just the host/victim country to the global community.
- Non-state actors & accountability: Corporations, insurgent groups and private cyber actors complicate applicability and remedies.
Conclusion
International law must evolve from a “law of nations” to a “law of humanity,” integrating AI ethics, climate liability, and space governance to ensure a resilient, rule-based global order.
